Earlier in the year we detailed the Government’s priorities for the second phase of its resource management reform programme (see our previous alert here). 

Minister Bishop announced an Amendment Bill last week to amend the Resource Management Act 1991 (RMA) to deliver on these priorities (Bill). The Bill is very much in line with early indications given by the Government. We have provided below a high-level overview of what is in the Bill and the changes that will be made if it is enacted.

By way of summary, phase two focuses on:

• significantly increasing the penalties and consequences for failing to comply with the RMA;
• targeted amendments to improve system efficiency, including removing the obligation to hold a hearing; 
• making it easier and cheaper to obtain resource consent for renewable energy and specified infrastructure projects;
• making the controversial Medium Density Residential Standards voluntary;
• introducing additional provisions to assist with emergency responses and manage the risk posed by natural hazards; and
• minor amendments relevant to the farming and the primary sector.

The penalties and consequences for failing to comply with the RMA will significantly increase 

Significant changes are proposed to the compliance and enforcement regime, which reflect what was incorporated in the previous Government’s reform of the RMA (in the Natural and Built Environment Act). The Bill amends the compliance and enforcement regime by:

• increasing the maximum fine for a natural person from $300,000 to $1,000,000 and increasing the fine for companies from $600,000 to $10,000,000;
• removing the ability to obtain insurance against penalties; 
• enabling greater cost recovery for councils;
• allowing consideration of past non-compliance with the RMA in applications for resource consent, and providing that consent can be declined where an applicant has a record of ongoing, significant, or repeated non-compliance with a requirement of the RMA, or the applicant is the subject of an enforcement order or conviction under the RMA;
• enabling a consent authority to include conditions of consents to mitigate any risk that the resource consent may not be complied with, in light of any previous non-compliance; and
• enabling resource consents to be revoked or suspended due to significant or repeated non-compliance.

Targeted amendments are proposed to simplify the consenting process, including to remove the obligation to hold a hearing

The Bill will make a suite of changes intended to improve the overall efficiency of the consenting process. Most notably:

• A consent authority must not hold a hearing if they consider they have sufficient information to decide an application without one (even if the application has been publicly notified.)
• Applicants (and submitters) will be able to review draft conditions of consent before a decision is made. 
• A consent authority will have greater power to review conditions if it determines that the consent holder has contravened a condition of the consent. 

Specific amendments will be made to the RMA to make it easier and cheaper to obtain consent for renewable energy and infrastructure projects

The majority of these amendments were signalled as part of the Governments Electrify NZ policy and will include specific provisions that apply to renewable energy generation and electricity transmission activities, as well as prescribed/listed “long-lived” infrastructure (including pipelines, telecommunication networks, cargo loading facilities & structures for transport on land). These provisions are intended to reduce the cost for operators and increase investment in renewable energy infrastructure, and include: 

• That decisions on specified energy activities (as well as wood processing activities) must be issued within one year of the consent application being lodged. This timeframe can be extended in certain circumstances at the request of the applicant or a specified group (to uphold treaty settlements and other arrangements).
• Introducing a default duration of 35 years for resource consents authorising renewable energy generation (including hydro and geothermal energy) and long-lived infrastructure.
• Increasing the lapse periods for renewable energy resource consents from five to ten years.
• Extending the duration of port permits and allowing ports with landward operations to attain requiring authority status.

The Bill also removes the requirement for requiring authorities to provide an assessment of alternatives where they have an interest in the land sufficient to undertake the work and the work will not result in significant adverse effects. The lapse period for designations will also increase to ten years. 

The controversial Medium Density Residential Standards will become voluntary

As anticipated, the implementation of Medium Density Residential Standards (MDRS) in residential zones within a district or unitary plan, will no longer be mandatory for Tier 1 councils under the RMA. Councils will still be required to demonstrate that 30 years of housing growth capacity is available for development, in line with the National Policy Statement on Urban Development 2020 (NPS-UD) [1].

Where councils have already incorporated the MDRS they will be able to decide whether to retain, alter or remove the MRDS from their district plan, and must do so following the streamlined planning process (SPP). The SPP can also be utilised by councils to list or delist heritage buildings. The Minister for the Environment will be given new powers to intervene and direct councils to comply with the NPS-UD, and to dictate the type of plan change process that is used.

Additional powers will be introduced into the RMA to strengthen emergency responses and reduce the risk posed by natural hazards

Emergency responses, natural hazards and climate risk has been a particular focus of this Government, and the Bill intends to:

• Empower the Governor-General to make regulations for the purpose of responding to natural hazard events or other emergencies and enabling recovery.
• Allow consent authorities to refuse to grant consents where there are significant risks from natural hazards, to mitigate the effects of natural hazards.
• Provide that rules in a proposed plan relating to natural hazards take immediate effect.

Clarifications are proposed which are relevant to fisheries, aquaculture and farming 

• Fisheries: New provisions will be added to specify the process that must be followed when a regional coastal plan seeks to impose controls on fishing and further clarify which rules within the RMA apply to fishing.
• Aquaculture: A national environmental standard will be able to specify that an application to change or cancel the conditions of an aquaculture activity consent is a controlled or restricted discretionary activity [2].
• Farming: Amendments are proposed to reduce the burden of preparing freshwater farm plans by changing the audit requirements and allowing approved industry organisations to certify freshwater farm plans.

The Bill clearly signals a continued focus on system efficiency, infrastructure, housing and the primary sector. We expect that this focus will continue into phase three of the system reform which will take shape over 2025. 

The Bill is expected to be introduced to Parliament for its first reading before Christmas. Please reach out to one of our experts if you would like more information about the Bill, how it may impact your organisation, and how you can prepare to make submissions as the Bill progresses.

This article was co-authored by Senior Solicitor Holly-Marie Rearic and Solicitor Aimee Harris in our Environment team.

Footnotes

1.   The NPS UD is expected be amended before the relevant sections of the Bill come into force. 
2.   The amendments in relation to fishing rights will not apply to Māori customary non-commercial fishing rights.